| Matter of La Casa Di Arturo Inc. v New York City Dept. of Consumer Affairs |
| 2014 NY Slip Op 06253 |
| Decided on September 23, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 23, 2014
Friedman, J.P., Acosta, Saxe, Gische, Kapnick, JJ.
12968 103151/12
v
The New York City Department of Consumer Affairs, Respondent.
DiTomasso & DiTomasso, New York (John J. Hayes of counsel), for petitioner.
Zachary W. Carter, Corporation Counsel, New York (Jenna Krueger of counsel), for respondent.
Determination of respondent, Department of Consumer Affairs (DCA), dated March 2, 2012, which, after a hearing, found that petitioner violated the Administrative Code of the City of New York § 20-224(a), and imposed a civil fine of $1,000.00, unanimously annulled, without costs, and the petition brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Manuel J. Mendez, J.], entered March 12, 2013), granted.
Petitioner, the owner of a restaurant located in New York County, challenges DCA's determination that it engaged in unlicensed sidewalk café activity on September 21, 2011 because its café seating was located on the public sidewalk (see Administrative Code of City of NY §§ 20-223[a], § 19-101[d]; see also Vehicle and Traffic Law § 144). On three prior occasions spanning more than two decades, DCA's administrative tribunals dismissed notices of violation against petitioner based on essentially identical factual allegations, finding that respondent failed to prove that the outdoor café was sited on public property. In the most recent of those decisions, issued less than four years before the inspection at issue, the tribunal specifically afforded DCA an opportunity to obtain evidence from the Department of Buildings regarding the location of the property line and DCA failed to present any such evidence. Similarly, at the October 18, 2011 hearing concerning the violation at issue, DCA's inspector admitted that he did not know where the property line is located and DCA did not offer any evidence establishing that the tables and chairs petitioner set up on the sidewalk extended past the property line onto the public sidewalk. Respondent's failure to adhere to its own prior precedent, without providing a sufficient reason for reaching a different result on identical facts, is arbitrary and capricious, requiring reversal (see [*2]Matter of Charles A. Field Delivery Serv. [Roberts] , 66 NY2d 516, 519-20 [1985]; Klein v Levin , 305 AD2d 316, 317-318 [1st Dept], lv denied 100 NY2d 514 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 23, 2014
CLERK